B-176937, MAR 7, 1973

B-176937, MAR 7, 1973

BID PROTEST - NON-RESPONSIVENESS - COMMITMENT TO MINORITY HIRING DECISION DENYING THE PROTEST OF FLEISCHER-SEEGER CONSTRUCTION CO. BASED ON THE NON-RESPONSIVENESS OF ITS BID UNDER AN IFB ISSUED BY U.S. ARMY CORPS OF ENGINEERS, ST. LOUIS, MO. BIDDER'S FAILURE TO COMPLY WITH THE IFB REQUIREMENT OF SUBMITTING AN AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY IS NOT A MINOR INFORMALITY THAT MAY BE WAIVED, AND THUS REQUIRES REJECTION OF THE BID AS NON-RESPONSIVE. 50 COMP. GEN. 844 (1971). FURTHER, A BIDDER'S INTENTION TO COMPLY WITH A LOCAL AFFIRMATIVE ACTION PLAN DOES NOT SATISFY THE IFB REQUIREMENT WHICH CALLS FOR A CONTRACTOR'S COMMITMENT TO A SPECIFIC PERCENTAGE OF MINORITY MANPOWER UTILIZATION. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO FLEISCHER-SEEGER CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 5, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID AS NONRESPONSIVE BECAUSE OF THE FAILURE TO FURNISH AN AFFIRMATIVE ACTION PLAN WITH YOUR BID. FOR THE REASONS SET FORTH BELOW, WE MUST DENY YOUR PROTEST.

THE SUBJECT CONTRACT WAS AWARDED, UNDER INVITATION FOR BIDS (IFB) DACW43- 72-B-9001, TO THE SECOND LOW BIDDER, THE U.S. STEEL CORPORATION ON SEPTEMBER 1, 1972. THE IFB WAS ISSUED ON JUNE 9, 1972, BY THE UNITED STATES ARMY CORPS OF ENGINEERS, ST. LOUIS, MISSOURI, FOR THE CONSTRUCTION OF PHASE II, SMALL BULK MAIL FACILITY, ST. LOUIS. BIDS WERE PUBLICLY OPENED AT 2:00 P.M., AUGUST 17, 1972, AND YOU WERE THE LOW BIDDER. SINCE, HOWEVER, YOUR BID DID NOT INCLUDE AN AFFIRMATIVE ACTION PLAN, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID MUST BE REJECTED AS NONRESPONSIVE. YOU WERE SO NOTIFIED BY THE CONTRACTING OFFICER'S LETTER OF SEPTEMBER 1, 1972.

THE SUBJECT IFB CONTAINS A "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY," WHICH STATES IN PART THAT: "TO BE ELIGIBLE FOR AWARD OF A CONTRACT, EACH BIDDER MUST FULLY COMPLY WITH THE REQUIREMENTS, TERMS, AND CONDITIONS OF THIS NOTICE." IT FURTHER PROVIDES THAT "THE BIDDER SHALL SUBMIT WITH HIS BID AN AFFIRMATIVE ACTION PLAN THAT INCLUDES PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION, WITHIN THE RANGES SET FORTH THEREIN ***," AND THAT "IF THE BIDDER FAILS OR REFUSES TO COMPLETE AND SUBMIT AN AFFIRMATIVE ACTION PLAN WITH HIS BID, *** THE BID *** SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED."

THIS OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE OF A BIDDER TO COMMIT HIMSELF, PRIOR TO BID OPENING, TO THE AFFIRMATIVE ACTION REQUIREMENTS, EITHER IN THE MANNER SPECIFIED IN THE INVITATION OR BY SEPARATE STATEMENT CONSTITUTING A DEFINITE COMMITMENT, IS NOT A MINOR INFORMALITY THAT MAY BE CORRECTED OR WAIVED AND REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. 50 COMP. GEN. 844 (1971); B-177081, JANUARY 9, 1973; B-176771, JANUARY 4, 1973; B-176487, SEPTEMBER 28, 1972; B 175837, SEPTEMBER 28, 1972; B- 176171, AUGUST 29, 1972.

IT IS YOUR CONTENTION, HOWEVER, THAT THE LOCAL AFFIRMATIVE ACTION PLAN, THE ST. LOUIS PLAN, "*** WAS AS MUCH A PART OF THE SPECIFICATIONS ON WHICH WE BID, INCLUDING ALL ADDENDA WHICH WERE RECOGNIZED, AS ANY OTHER PART OF THE SPECIFICATION DOCUMENT - BOTH GENERAL AND TECHNICAL." THEREFORE, YOU ARGUE THAT YOU WERE LEGALLY BOUND TO COMPLY WITH THE CONDITIONS OF THE LOCAL PLAN AND THAT YOUR FAILURE TO SUBMIT AN AFFIRMATIVE ACTION PLAN SHOULD BE REGARDED AS "*** MINOR INFORMALITY, A MATTER OF FORM AND NOT SUBSTANCE, WHICH SHOULD NOT ADVERSELY AFFECT CONSIDERATION OF YOUR BID." IN SUPPORT OF YOUR CONTENTION THAT YOU WERE LEGALLY BOUND TO COMPLY WITH THE TERMS OF THE LOCAL PLAN, YOU ADVANCE SEVERAL ARGUMENTS. IN YOUR LETTER TO THE CONTRACTING OFFICER OF SEPTEMBER 2, 1972, YOU SUGGEST THAT THE SENTENCE ON PAGE BS.1 OF THE BIDDING SCHEDULE, "THE ACCOMPANYING NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO INSURE EQUAL EMPLOYMENT OPPORTUNITY IS MADE A PART OF THIS BID," INDICATES THAT THE ST. LOUIS PLAN AUTOMATICALLY BECAME A PART OF YOUR BID. WE DO NOT AGREE. THE QUOTED SENTENCE STATES ONLY THAT THE REQUIREMENT FOR SUBMITTING AN AFFIRMATIVE ACTION PLAN IS A PART OF THE BID AND NOT THAT THE LOCAL PLAN ITSELF IS A PART OF THE BID.

YOU ALSO CONTEND THAT THE SENTENCE IN THE "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY" PROVISION THAT "IT HAS BEEN DETERMINED THAT IN THE PERFORMANCE OF THE CONTRACT TO BE AWARDED UNDER THIS SOLICITATION AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM FOR THE TRADES SPECIFIED BELOW WILL RESULT IN MANPOWER UTILIZATION WITHIN THE RANGES SET FORTH NEXT TO EACH TRADE," EFFECTIVELY INCORPORATED THOSE MINORITY MANPOWER GOALS INTO YOUR BID AND MADE THEM LEGALLY BINDING UPON YOU.

IN AN EARLIER DECISION WHERE THE INVITATION INCLUDED THE SAME PROVISION AS INVOLVED HERE AND THE BIDDER SIGNED IT BUT FAILED TO SUBMIT SPECIFIC GOALS AS REQUIRED THEREIN, WE REJECTED THE ARGUMENT THAT THE BID WAS RESPONSIVE BECAUSE THE SIGNATURE INDICATED INTENT TO COMMIT THE BIDDER TO ADOPT THE GOALS (RANGES) AS SET FORTH. SEE 50 COMP. GEN. 844, SUPRA. WE EXPLAINED OUR RATIONALE AS FOLLOWS:

IN VIEW OF THE ABOVE, AND AS SET FORTH BELOW, WE DO NOT AGREE THAT A FAILURE TO SUBMIT SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION IS A DEVIATION WHICH CAN BE WAIVED OR CORRECTED. SECTION 3 OF THE REQUIREMENTS, TERMS AND CONDITIONS OF APPENDIX "A" STATES THAT "THE CONTRACTOR'S OR SUBCONTRACTOR'S GOALS ESTABLISHED WITHIN THE ABOVE RANGES SHALL EXPRESS THE CONTRACTOR'S *** COMMITMENT OF THE PERCENTAGE OF MINORITY PERSONNEL WHO WILL BE WORKING IN EACH SPECIFIED CRAFT ON EACH OF HIS PROJECTS." ALSO, SECTION 4 THEREOF NOTES THAT THE COMMITMENT TO SPECIFIC GOALS IS TO MEET AFFIRMATIVE ACTION OBLIGATIONS. SECTION 5 THEREOF FURTHER BUTTRESSES OUR CONCLUSION. IT READS, IN PERTINENT PART, THAT:

THE CONTRACTOR'S OR SUBCONTRACTOR'S*** COMMITMENT TO SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION AS REQUIRED BY THIS APPENDIX A SHALL CONSTITUTE A COMMITMENT TO MAKE EVERY GOOD FAITH EFFORT TO MEET SUCH GOALS

IN THE EVENT THAT THE CONTRACTOR FAILS TO MEET THE SPECIFIC GOALS WHICH HE ESTABLISHES, A DETERMINATION OF WHETHER OR NOT HE EXERCISED "GOOD FAITH" IN ATTEMPTING TO MEET SAID GOALS IS BASED AND CORRELATIVE UPON HIS SPECIFIC COMMITMENT THEREON. SANCTIONS SUCH AS CONTRACT CANCELLATION CAN BE IMPOSED IF IT IS DETERMINED THAT THE CONTRACTOR DID NOT EMPLOY THE REQUISITE "GOOD FAITH." IT IS OUR VIEW THAT THE SUBMISSION OF GOALS BY THE SUCCESSFUL BIDDER WOULD OPERATE TO MAKE THE REQUIREMENT FOR "EVERY GOOD FAITH EFFORT" TO ATTAIN SUCH GOALS A MATERIAL PART OF HIS CONTRACTUAL OBLIGATION UPON AWARD OF A CONTRACT. THEREFORE, THE OBLIGATIONS IMPOSED BY APPENDIX "A" WOULD BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH A CONTRACTOR'S PERFORMANCE WILL BE JUDGED IN THE EVENT HE FAILS TO ATTAIN HIS STATED GOALS, JUST AS MUCH AS HIS STATED GOALS BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH HIS PERFORMANCE WILL BE JUDGED IN THE EVENT HE DOES ATTAIN HIS STATED GOALS.

WITH THE FOREGOING IN MIND, WE CANNOT AGREE THAT, BECAUSE IT SIGNED APPENDIX "A" IN TWO PLACES, NORTHEAST WAS COMMITTED TO THE PRESCRIBED MINIMUM PERCENTAGE RANGES FOR MINORITY GROUP EMPLOYMENT SET FORTH IN THE REQUIREMENTS, TERMS AND CONDITIONS OF THE APPENDIX. UPON EXAMINATION OF THE NORTHEAST BID AND THE ATTACHED APPENDIX "A," WE FIND NO BASIS TO CONCLUDE THAT NORTHEAST WAS LEGALLY BOUND TO AT LEAST THE MINIMUM PRESCRIBED PERCENTAGE RANGES. THE APPENDIX, READ AS A WHOLE, IS QUITE SPECIFIC THAT THE BIDDER MUST SUBMIT HIS GOALS, SINCE HIS COMPLIANCE IS MEASURED BY HIS GOALS AND NOT BY THE PRESCRIBED MINIMUMS. ACCORDINGLY, IT IS OUR OPINION THAT A FAILURE BY A BIDDER TO SUBMIT SPECIFIC INDIVIDUAL GOALS FOR MINORITY MANPOWER UTILIZATION CONSTITUTES SUCH A MATERIAL DEVIATION FROM THE STATED REQUIREMENTS OF APPENDIX "A" THAT SUCH A DEFICIENT BID CANNOT BE REGARDED AS ELIGIBLE FOR AWARD UNDER THE SUBJECT INVITATION.

IN SUPPORT OF YOUR POSITION, YOU ALSO QUOTE ANOTHER SENTENCE FROM THE PARAGRAPH REQUIRING SUBMISSION OF AN AFFIRMATIVE ACTION PLAN, WHICH PROVIDES THAT "IN THE EVENT THAT A COVERED CONSTRUCTION TRADE FOR WHICH NO GOAL HAS BEEN SUBMITTED IS USED IN THE PERFORMANCE OF THE CONTRACT *** THE BIDDER WILL BE CONSIDERED TO HAVE SUBMITTED AS GOALS THE MINIMUM PERCENTAGE FROM THE ACCEPTABLE RANGE FOR THE PARTICULAR TRADE FROM THE APPROPRIATE YEAR." WE AGREE WITH THE CONTRACTING OFFICER THAT THIS PROVISION IS APPLICABLE AFTER CONTRACT AWARD TO COVER A SITUATION WHERE A BIDDER DISCOVERS THAT ADDITIONAL CRAFTS WILL BE REQUIRED OVER AND ABOVE THOSE UPON WHICH HE HAS SUBMITTED GOALS IN HIS BID. IT DOES NOT, HOWEVER, CURE THE FAILURE TO COMMIT YOURSELF TO THE AFFIRMATIVE ACTION REQUIREMENTS OF THE SOLICITATION.

IN YOUR LETTER OF SEPTEMBER 2, YOU ALSO QUOTE SECTION (D) OF GENERAL PROVISION 69, ST. LOUIS PLAN, OF THE IFB TO THE EFFECT THAT "THE CONTRACTOR SHALL BE DEEMED TO HAVE MADE HIS COMMITMENT TO SPECIFIC GOALS FOR MINORITY MANPOWER UTILIZATION, IF HE HAS NOT DENIED EQUAL EMPLOYMENT OPPORTUNITY ***," AND HE IS A MEMBER OF AN ASSOCIATION WHICH ADVOCATES THE EXPANDED USE OF MINORITY WORKERS. SINCE YOU ARE A MEMBER OF THE ASSOCIATED GENERAL CONTRACTORS OF ST. LOUIS, YOU CLAIM THAT YOU HAVE FULFILLED THE REQUIREMENT FOR SUBMISSION OF AN AFFIRMATIVE ACTION PLAN. THE SENTENCE YOU REFER TO IN SUPPORT OF YOUR POSITION IS QUOTED INCORRECTLY. IT BEGINS, "THE CONTRACTOR SHALL BE DEEMED TO HAVE MET ***" RATHER THAN MADE, HIS COMMITMENT TO MINORITY MANPOWER GOALS. AS STATED CORRECTLY, IT MEANS THAT THE CONTRACTOR, AFTER AWARD, WILL BE DEEMED TO HAVE COMPLIED WITH THE MINORITY MANPOWER GOALS WHICH WERE SUBMITTED BY HIM IN HIS BID IF HE CAN SHOW THAT HE UNDERTOOK CERTAIN SPECIFIED ACTIONS. THE PROVISION, THEREFORE, RELATES TO COMPLIANCE WITH THE APPLICABLE PLAN INCLUDED IN THE CONTRACT AND NOT TO WHETHER THE INVITATION REQUIREMENT FOR SUBMISSION OF A PLAN WITH THE BID HAS BEEN MET.

IN YOUR LETTER TO THIS OFFICE DATED SEPTEMBER 12, 1972, YOU EXPRESS CONCERN ABOUT AN APPARENTLY SIMILAR SITUATION IN KANSAS CITY IN WHICH THE UNITED STATES ARMY CORPS OF ENGINEERS REPORTEDLY CONSIDERED THE FAILURE TO COMPLY EXACTLY WITH THE REQUIREMENT FOR AN AFFIRMATIVE ACTION PLAN AS A MINOR INFORMALITY. IT IS CLEAR FROM COPIES OF THE PERTINENT DOCUMENTS SUBMITTED TO OUR OFFICE THAT THE BIDDER HAD ENTERED MINORITY MANPOWER GOALS ON THE APPROPRIATE FORM AND HAD SUBMITTED A SIGNED AFFIRMATIVE ACTION PLAN THAT STATED, "IT IS RECOGNIZED THAT THE WORK IS BEING BID UNDER THE 'LOCAL AFFIRMATIVE ACTION PLAN'." THEREFORE, IT APPEARS THAT THE BIDDER HAD COMMITTED ITSELF TO BE LEGALLY BOUND BY THE LOCAL PLAN AND THE BID WAS RESPONSIVE. IN ANY EVENT, WE DO NOT BELIEVE THAT THE ARMY'S ACTIONS IN A PRIOR CASE COULD JUSTIFY THE ACCEPTANCE OF A NONRESPONSIVE BID UNDER THIS PROCUREMENT.

IN SUPPORT OF THE ARGUMENT THAT YOUR FAILURE TO SUBMIT AN AFFIRMATIVE ACTION PLAN SHOULD BE WAIVED, YOU HAVE CITED B-176260, AUGUST 2, 1972. THAT CASE THE INVITATION PROVIDED THAT IF A BIDDER ELECTED TO ADOPT THE ATTACHED AFFIRMATIVE ACTION PLAN, IT SHOULD BE RETURNED WITH THE BID AND THE ATTACHED "BIDDER'S AGREEMENT" PROPERLY EXECUTED. THE BID OF THE PROTESTING BIDDER WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO INCLUDE THE AFFIRMATIVE ACTION PLAN. WE HELD THAT THE OMISSION COULD HAVE BEEN WAIVED AS A MINOR INFORMALITY BECAUSE THE BIDDER HAD SUBMITTED THE "BIDDER'S AGREEMENT" PROPERLY EXECUTED AND A LETTER SETTING FORTH HIS PROPOSED MINORITY GROUP GOALS. THIS WAS BASED UPON THE CONCLUSION THAT THE "BIDDER'S AGREEMENT" AND THE LETTER CLEARLY BOUND THE BIDDER TO THE SPECIFIED AFFIRMATIVE ACTION PLAN AND TO SPECIFIC MINORITY MANPOWER GOALS, RESPECTIVELY. THAT CONCLUSION IS READILY DISTINGUISHABLE FROM THE SITUATION HERE, WHERE YOUR BID INCLUDED NEITHER A "BIDDER'S AGREEMENT," OR SIMILAR DOCUMENT, NOR SPECIFIC MINORITY MANPOWER GOALS. ALSO, IN THAT CASE IT SHOULD BE NOTED THAT WE FOUND THE BID WAS NONRESPONSIVE BECAUSE THE BIDDER INSERTED A FIGURE IN ITS BID FOR MINORITY GROUP EMPLOYMENT IN ONE CATEGORY WHICH WAS BELOW THE ACCEPTABLE MINIMUM STANDARD AS REQUIRED BY THE SOLICITATION.

FINALLY, IN YOUR LETTER TO THIS OFFICE DATED OCTOBER 25, 1972, YOU MAKE THE POINT THAT "*** THIS PARTICULAR SPECIFICATION WAS DIRECTED AND PREPARED WITHOUT ANY LOCATION ANYWHERE FOR SIGNATURE ON ANY PART OF THE SHEETS RELATING TO THE ST. LOUIS PLAN ***." HOWEVER, AS THE CONTRACTING OFFICER POINTS OUT, YOU WERE THE ONLY ONE OF NINE BIDDERS WHO FAILED TO SUBMIT AN AFFIRMATIVE ACTION PLAN. THIS IS PERSUASIVE EVIDENCE THAT THE IFB WAS CLEAR AND UNAMBIGUOUS. FURTHERMORE, THE APPROPRIATE TIME TO RAISE ANY QUESTION CONCERNING THE TERMS OF A SOLICITATION IS PRIOR TO BID OPENING.

ACCORDINGLY, YOUR PROTEST IS DENIED.